IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080010503 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her general discharge (GD), under honorable conditions be upgraded to honorable and that her narrative reason for discharge be changed.  In an electronic mail message, dated 6 July 2008, the applicant updated her application by requesting that her separation designator program (SPD) code and her reentry eligibility (RE) code be changed.

2.  The applicant states that a grave injustice was done to her as shown in a letter she has provided by her former commander.  She contends that she continues to suffer in her post-military life, not only from post-traumatic stress disorder, but from not being able to secure employment opportunities that she earned by being a member of the Army.  She also contends that she has taken responsibility for her poor choice in judgment.  She would do absolutely anything to get back on active duty.  She is not bitter and holds no grudges against anyone but herself.

3.  The applicant did not provide additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 5 August 1983, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 22 March 1984, she was discharged from the DEP and enlisted in the Regular Army for 3 years.  She extended her enlistment for a period of 1 year, and 28 September 1989 reenlisted.  She completed training requirements and was awarded military occupational specialty 88N (Traffic Management Coordinator).  She attained the rank and grade of sergeant (SGT)/E-5.

3.  On 1 December 1993, the applicant pled guilty and was found guilty by special court-martial of two specifications of wrongful use of marijuana, possession of marijuana, and disorderly conduct.  She was sentenced to be discharged with a bad conduct discharge, reduction to private/E-1, and a forfeiture of two-thirds pay per month for 6 months.

4.  On 14 January 1994, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of $514.00 pay per month for 6 months, and reduction to the grade of private/E-1.

5.  On 14 February 1996, the convening authority issued an order noting that the provisions of Article 71c having been complied with, the bad conduct discharge was ordered to be executed.  On 10 April 1996, the applicant was separated with a bad conduct discharge.  She had completed 12 years and 19 days of creditable active service. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was assigned an SPD code of JJD and an RE code of RE-4.

6.  On 4 March 1997, the Army Discharge Review Board (ADRB) granted the applicant clemency and upgraded her bad conduct discharge to a GD.

7.  On 17 May 1999, the ADRB denied the applicant's request for a change in her narrative reason for discharge.

8.  The applicant provided a letter from her former company commander who initiated the court-martial action against the applicant.  She contends that during the time of the applicant's discharge, her unit was experiencing great difficulties as a result of the drawdown.  With personnel shortages and a sudden increase in their workload, she was personally overwhelmed.  She felt betrayed by the applicant for adding another problem to the unit.  She took the incident personally because she had so much trust in the applicant.  Although she carefully considered all the evidence presented by the investigating authorities and received sound advice from legal counsel, she made a mistake in not considering the "whole Soldier" when making the determination of punishment.  In retrospect, maybe the applicant did not receive fair justice from her during the investigation.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and the affirmed sentence ordered duly executed.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-1 and 2 permit immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

12.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents (DD Form 214/215).  Items 25 (Separation Authority), 26 (SPD Code), and 28 (Narrative Reason for Separation) of the DD Form 214 are completed in accordance with Army Regulation 635-5.

13.  Army Regulation 635-5-1 (SPD Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The regulation in effect at the time of the applicant's discharge directed that "Chapter 3, Army Regulation 
635-200, court-martial, other" would be entered as the narrative reason with a corresponding SPD code of JJD.

14.  Additionally, the SPD/RE Code Cross Reference Table established RE codes to be assigned for each SPD.  A separation code of JJD applied to persons who were separated under the provisions of chapter 3 of Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated by reduction in forces.  An RE code of RE-4 means the applicant was separated from his last period of service with a disqualification which cannot be waived and he ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant pled guilty at court-martial to serious charges under the Uniform Code of Military Justice.  She was found guilty of the charges against her.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  There is no evidence that an injustice was committed against the applicant.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a noncommissioned officer (NCO).  The applicant, as an NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career.  There is no evidence of arbitrary or capricious actions by the command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Notwithstanding the statement from the applicant's former unit commander, the applicant, as an NCO with nearly 12 years of active duty service, clearly knew and understood her obligations to adhere to Army drug policies.

3.  On the basis of clemency, the ADRB upgraded the applicant's bad conduct discharge to a GD and denied changing her narrative reason for discharge.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  Given the above, and after a thorough review of the applicant’s record and the serious nature of her offenses, there is no cause for further clemency.

4.  The SPD and RE codes are based on an individual's reason for discharge and cannot be changed unless the narrative reason for discharge is changed.  The evidence in the official record fully supports her narrative reason for discharge as stated and there is no basis upon which to change her reason for discharge.  Therefore, the applicant's SPD and RE codes were appropriately assigned in accordance with the regulatory guidance above.  The applicant is ineligible for reenlistment in the Army.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


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      _________________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010503



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ABCMR Record of Proceedings (cont)                                         AR20080010503



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